Employment The basic mandate of Title I of the Americans with Disabilities Act (ADA) is that an employer cannot discriminate against an otherwise qualified person with a disability in any aspect of the employment relationship. All public school systems are subject to the Title I standards. Employment activities include recruitment, the application process, testing, interviewing, hiring, assignments, evaluation, discipline, medical examinations, compensation, promotion, on-the-job training, layoff/recall, termination, leave, benefits such as health insurance, and any other terms, conditions, and privileges of employment. The language of the regulation is as follows: 28 C.F.R.§35.140 (a) No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity. Who is a "Qualified Individual with a Disability?" Employers may not discriminate against "qualified individuals with disabilities," either as job applicants or employees. For employment, a qualified individual with a disability is a person with a disability who satisfies the requisite skill, experience, and education and other job-related requirements for the job and can perform the essential functions of the job, with or without reasonable accommodation [29 C.F.R.§1630.2(m)]. All individuals with disabilities are not necessarily "qualified individuals with disabilities." What Are the "Essential Functions" of a Job? A person is a qualified individual with a disability if he or she can perform the essential functions of a job, with or without reasonable accommodation. If such a person cannot perform marginal or incidental job functions, the individual is still considered qualified. It is critical that employers analyze and document job requirements to clarify the distinction between essential and non-essential job functions. Factors in determining whether a job function is essential include: 1. whether the reason the position exists is to perform the function; 2. whether a limited number of employees are available to perform the function, or whether the performance of the job function can be distributed among them; and/or 3. whether the function is a highly specialized one that requires special expertise or ability the person hired must have to be able to perform it [29 C.F.R.§1630.2(n)(2)]. Example: Is this individual able to perform essential job functions? A public school is hiring a secretary to the principal. Dorothy, who has multiple sclerosis and uses a wheelchair, meets all the qualification standards in experience, education, and related skills. 70% of the job involves typing, 25% of the job involves the telephone, and 5% of the job involves filing. There is a file clerk who handles the bulk of the filing. The office has a system of upright files and Dorothy is unable to reach the two top drawers; however, she can perform all other job duties. Since she has the requisite skills and education and can perform the essential functions of the job, and the filing task is a marginal function, Dorothy is qualjfied for the position. What is Meant by "Reasonable Accommodation"? Employers are required to make reasonable accommodation for qualified applicants and employees with disabilities who request such accommodation. Reasonable accommodation means modifications or adjustments to a job application process, the work environment, the way in which a job is customarily performed, or employment policies that enable a qualified individual with a disability to be considered for the position, perform the essential functions of the job, or enjoy benefits and privileges of employment equal to those available to a similarly-situated employee without a disability [29 C.F.R.§1630.2(o)(l)]. What are Examples of Reasonable Accommodation? Examples of reasonable accommodation include adjusting work schedules, restructuring the job, reassigning the employee, acquisition or modification of equipment and devices, providing qualified readers or interpreters, or modifying the work site [29 C.ER.§1630.2(o)(2)]. 1) Adjusting work schedules. An employer should consider modification of a regular work schedule as a reasonable accommodation unless this would cause an undue hardship. Modified work schedules may include flexibility in work hours or the work week, or part-time work, where this will not be an undue hardship. Example: Is the following adjustment of work schedule a reasonable accommodation? Jim, an administrator in a school district's central office, has a disability, one of the effects of which is sleeplessness. As a result of Jim's request for a reasonable accommodation, the district permits Jim to start work at 8 A.M., rather than at 7 A.M., the typical starting time for administrators. Jim then leaves work at 5 P.M., one hour later than the typical time administrators leave for the day. The district is fulfilling its obligation to provide reasonable accommodation. 2) Restructuring the job. Job restructuring as a reasonable accommodation may involve reallocating or redistributing the marginal functions of a job. Although an employer is not required to reallocate essential functions of a job as a reasonable accommodation, it may be a reasonable accommodation to modify the essential functions of a job by changing when or how they are done. Example: Is job restructuring a reasonable accommodation for this individual? Rob, who had his left arm amputated as a result of an accident, has returned to work in the facilities maintenance department using a prosthesis. He is able to perform all of the essential job functions. However, Rob is not able to perform the marginal function of operating one piece of equipment that cannot be modified and requires a two-handed, fine motor grasping motion. Since Rob always works as part of a crew, the duties among the crew are reallocated so that other workers perform that task. The school district is fulfilling its obligation to provide reasonable accommodation. 3,) Reassigning the employee to a vacant position. Although "reassignment" was not specifically listed as a possible reasonable accommodation in the regulation for Section 504 of the Rehabilitation Act of 1973 prior to the Rehabilitation Act Amendments of 1992, under the Title I regulation, reassignment may be an appropriate accommodation if an individual is unable to perform the essential functions of his or her current position because of a disability. If there is no other accommodation that will enable the person to perform these functions, or if the employer can prove that other accommodations would pose an undue hardship, reassignment to a vacant lateral or lower position should be considered if the individual is qualified for the position. Example: Is employee reassignment a reasonable accommodation for this individual? Sarah worked as a bus driver for the City Department of Education. After a serious car accident in which she experienced a traumatic brain injury, Sarah is unable to drive and is therefore no longer able to perform the duties. There is no reasonable accommodation that would enable Sarah to perform the essential function of driving a bus safely. However, Sarah is qualified for a position that has just become vacant in which she would coordinate transportation for athletic and other special events. The City Department of Education offers Sarah this job reassignment as a reasonable accommodation, which fulfills the agency's duty to provide reasonable accommodation. 4) Acquiring or Modifying Equipment and Devices. Purchase of equipment or devices or modifications to existing equipment may be effective accommodations for people with disabilities. These devices range from very simple solutions, such as an elastic band that can enable a person with cerebral palsy to hold a pencil and write, to high-tech electronic equipment that can be operated with eye or head movements by people who cannot use their hands. There are ways to modify standard equipment to enable people with functional limitations to perform jobs effectively and safely. Martin is a part-time maintenance worker by a school system. One of his primary responsibilities during the winter is removing snow from sidewalks. Martin develops a heart ailment that substantially limits his ability to lift heavy objects and prevents him from shoveling snow. He informs his employer about his health condition and requests reasonable accommodation. He is fired without discussion. The school system has discriminated against Martin because school officials did not discuss possible reasonable accommodation, such as the provision of a snow blower, that may have enabled him to continue fulfilling his responsibilities. 5) Providing Qualified Readers and Interpreters. Providing a qualified reader for a qualified individual with a visual disability or a qualified interpreter for a qualified individual with a hearing disability may be a reasonable accommodation, if the accommodation does not impose an undue hardship. Identifying the needs of the individual in job tasks will determine whether or when a reader or interpreter is needed. Few jobs require a full-time employee for reading or interpreting. A reader or an interpreter may be a part-time employee or a full-time employee who performs other duties. Readers and interpreters must read and interpret well enough to enable the employee with disabilities to perform his or her job effectively. 6) Modifying the work site. Employers are obligated to provide access for individual job applicants with disabilities to enable them to participate in the job application process. When an employee with a disability is hired, an employer may have to modify the work site to enable him or her to perform essential job functions. Employees with disabilities must be able to readily access all facilities used by employees, whether essential to job functions or not--for example, the employee lounge or cafeteria. An employer is obligated to provide only job-related accommodations. The requirement to provide reasonable accommodation does not include providing personal aids or services to assist an individual in daily activities on or off the job, such as wheelchairs, glasses, prostheses, or assistance in toileting or feeding. How Does the Employer Know a Reasonable Accommodation is Needed? The employer is obligated to accommodate only the known disabilities of qualified applicants or employees [29 C.F.R.§1630.9(a)]. The responsibility for providing an accommodation is triggered when an individual with a disability makes a request. Usually, the person making the request will suggest an appropriate accommodation. School districts can facilitate this process by providing forms and procedures for individuals who accommodation. Many employees with disabilities do not need accommodations. For other employees, the need for accommodation may be obvious. If an employee with a known disability is having difficulty performing the job without an accommodation, the employer may ask the employee whether he or she is needs an accommodation. Under the Title I regulation, a qualified individual with a disability is not required to accept the offer of an accommodation. However, if such an offer is rejected and the person cannot then perform the essential functions of the job, the person will no longer be considered a qualified individual with a disability [29 C.F.R.§1630.9(d)]. What If the Employer Can't Afford the Accommodation? If an employer can prove that a requested accommodation imposes an "undue hardship", it need not be provided [29 C.F.R.§163O.9(a)j. If the originally requested accommodation is an undue hardship, the employer must consider whether another accommodation exists that would not result in an undue hardship. Does the ADA Require Employers to Lower Qualification Standards to Hire People with Disabilities? The ADA does not prohibit an employer from establishing physical and mental job-related qualification standards - including education, skills, and work experience - necessary for job performance, health and safety [29 C.F.R.§1630.10]. Public school districts are entitled to hire the most qualified person able to perform a job. ADA requirements are designed to ensure that people with disabilities are not excluded from jobs they can perform. Qualification standards or selection criteria that screen out or tend to screen out an individual with a disability on the basis of disability are not automatically disallowed if they are demonstrably job-related and consistent with business necessity [29 C.F.R.§1630.10]. "Job-related" means that a selection criterion must be a legitimate measure or qualification for the job for which it is being used. "Business necessity' means that a selection criterion may not exclude an individual with a disability because of the disability unless the criterion relates to the essential functions of the job. Even if a standard is job-related and consistent with business necessity, if it screens out an individual with a disability on the basis of disability, the employer must consider whether the individual could meet the standard with reasonable accommodation. For example, it may be job-related and necessary for a school district to require that a secretary produce letters and other documents on a word processor. However, it would be discriminatory to reject a person whose disability prevented manual keyboard operation but who could meet the qualification standard using a computer assistive device. Such devices are generally not costly and would not be expected to impose an undue hardship. How Can Employers Attract Qualified Applicants with Disabilities? It is advisable that job announcements, advertisements, and other recruitment notices include information on the essential functions of the job. Information about essential functions will attract applicants, including individuals with disabilities, who have appropriate qualifications. Information about job openings should be accessible to people with various disabilities. For example, job information should be available in a location that is accessible to people with mobility impairments and in formats accessible to individuals with sensory impairments. While an employer is not obligated to provide written information (such as job descriptions) in alternate formats in advance of any request, the information in alternate formats must be made available in a timely manner once it has been requested. Are Reasonable Accommodations Also Required as Part of the Hiring Process? Public school systems have an obligation to make reasonable accommodations to enable an applicant with a disability to apply for a job. For example, individuals with visual or learning disabilities or other mental disabilities may require assistance filling out application forms. School districts must also provide a reasonable accommodation, if needed, to enable an applicant to have equal opportunity in the interview process. Accommodations for interviews may include an accessible location for people with mobility impairments, a sign language interpreter for a person with a hearing impairment, or a reader for a person with a visual impairment. School districts may find it helpful to include a statement in job notices and/or job application forms that applicants who need accommodation for an interview should request this in advance. Does the Employer Have to Lower Performance Standards for Employees with Disabilities? Employees with disabilities may be held to the same standards of production and performance as other employees without disabilities who are performing similar functions. No "special treatment" is required in performance evaluations. If an employee with a disability is not performing well, an employer is entitled to take the same disciplinary action that would be taken against other similarly situated employees. Does the ADA Also Protect Employees Who Are Related to Persons with Disabilities? Employers sometimes make damaging and unfounded assumptions about how a current or prospective employee's relationship with a person with a disability will affect job performance. To protect individuals from this discrimination, the ADA bars employers from discriminating against employees, or potential employees, because of their known relationship or association with a person who has a disability [29 C.F.R.§1630.8]. Previously there was no similar provision under Section 504. This ADA provision makes it illegal to fire or refuse to hire someone because of assumptions about how their relationship with a person who has a disability will affect either their work schedule or their participation in an employer-provided health insurance plan. Such persons cannot be required to accept different insurance terms than those offered to other individuals. The requirement prohibiting discrimination on the basis of "relationship or association" refers not only to family and other close personal relationships, but also to other social or business relationships and associations [Appendix to 29 C.F.R. Part 1630, at 406 (1994)]. For example, an employer may not discriminate against an individual who is affiliated with a group or association that is composed of persons with disabilities or intended to benefit them. Thus, volunteer work for certain organizations may be considered an association. Are Employers Obligated to Provide "Reasonable Accommodations" for Employees Related to Persons with Disabilities? Employers are not obligated to provide accommodation to employees who have a relationship or association with people with disabilities [Appendix to 29 C.F.R. Part 1630, at 406 (1994)]. For example, under the ADA employers are not required to provide modified work schedules as an accommodation to enable employees to care for spouses or children with disabilities or to carry out volunteer activities related to people with disabilities. Miscellaneous The following questions were asked at workshops or over the ADA National Access for Public Schools hotline. The answers were either written or reviewed by the Office for Civil Rights at the U.S. Department of Education. 1. Q: What should a school principal do if she hires an elementary school teacher and finds out that he has a learning disability? The teacher is to teach language arts, reading, and spelling to third grade students. A: Having a learning disability does not automatically mean that a teacher is unqualified to teach language arts, reading, and spelling. However, if the teacher cannot perform the essential functions of the job, with or without reasonable accommodation, then the teacher is not qualified. If there is no other accommodation that will enable the individual to perform the essential functions of the job, reassignment to a vacant position should be considered if the individual is qualified for the vacant position. In some cases teachers with a learning disability involving language would be qualified to teach math or science or other subjects, if reading, spelling and other language arts are not essential functions of the job. However, the school district would not be required to create a new job or bump current employees from a job to make the reassignment as a reasonable accommodation. Nothing in the ADA would prohibit the principal or school district from terminating the teacher's employment. 2. Q: A public school teacher teaches in a program for children with behavioral disorders. Last semester she was in an accident and suffered multiple injuries, including a head injury. She has returned to her teaching position, but is subject to inappropriate outbursts of anger. The school district has attempted to make reasonable accommodations by reducing her workload and by making adjustments to her work schedule so that she can attend therapy sessions. However, she is still subject to inappropriate outbursts of anger. What should the school do? A: In order to be qualified for this position, the teacher must be able to perform the essential functions of the job with or without reasonable accommodation. The school should document attempts to make reasonable accommodation for this teacher. If the teacher is not qualified for this position with or without reasonable accommodation, the school district should consider other reasonable accommodations, including reassignment to a vacant position for which the teacher is qualified. If there is no reasonable accommodation available, including reassignment to a vacant position, there is nothing under the ADA that would prohibit the school district from terminating the teacher's employment. 3. Q: A union contract stipulates that a school district cannot provide special accommodations to one employee that are not being provided to other employees. However, the ADA requires that school districts make reasonable accommodation for qualified applicants and employees with disabilities who request such accommodation. What should the school district do? A: Labor unions are covered by the ADA and have the same obligation as school districts to comply with the ADA. A school district cannot take any action through a labor union contract that would be impermissible for it to take directly. In order to avoid conflicts between bargaining agreements and school districts' duties to comply with the ADA, it is suggested that agreements between school districts and unions contain a provision that explicitly permits school districts to take all action needed to comply with the ADA. 4. Q: If an employee is doing her job to an acceptable performance standard, is the employer responsible for providing a reasonable accommodation that will allow her to perform the job functions better? A: Employers are required to make reasonable accommodation for qualified applicants and employees with disabilities who request such accommodation if the accommodation is needed for the individual to participate in the application process, to perform essential job functions or to receive benefits and privileges of employment equal to those available to a similarly situated employee without a disability. However, if an employer is satisfied with an employee's job performance and the employee is adequately performing the job functions, the employer is not obligated to provide reasonable accommodation for the employee to perform the job function better. For More Information Disability and Business Technical Assistance Centers (DBTACs) distribute ADA regulations and other material and offer technical assistance on all aspects of the ADA * 800-949-4232 voice/TTY * www.adata.org The U.S. Department of Education's Office for Civil rights offers technical assistance regarding the requirements of Section 504 and Title II of the ADA * 800-421-3481 * www.ed.gov/offices/OCR The U.S.Department of Justice offers technical assistance on Title II and Title III of the ADA and distributes those regulations and other ADA publications. * 800-514-0301 voice or 800-514-0383 TTY * www.usdoj.gov/crt/ada/adahom1.html The Equal Employment Opportunity Commission offers technical assistance, regulations and other publications on ADA employment provisions. * 800-669-4000 voice or 800-669-6820 TTY * www.eeoc.gov Resources * Compliance with the Americans With Disabilities Act: A Self-Evaluation Guide for Public Elementary and Secondary Schools ($21) * The ADA and Public Schools: Access for All - 18 minute video ($35) Both are available from the ADA National Access to Schools Project. See contact information above. * Free Appropriate Public Education for Students with Disabilities * Student Placement in Elementary and Secondary Schools & Section 504 and Title II of the Americans with Disabilities Act * The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973 The pamphlets are available from the U.S. Department of Education's Office for Civil Rights 800-421-3481 or www.ed.gov/offices/OCR. 1